Case Information

'APICANT REBUTTAL'

*2 NO: 30, 2.78 30, 600

TO THE HONORABLE CLERK?

Now COMEE TERRY MILLER, IN HIS RESULTAL TO THE 188th District response' applicant is humble requesting that you please make copies of the applicants response and forward it to the 188th district, Gregg County, Longview, Te. Your attention in this matter is greatly appreciated.

The aboliscnt has peviously leticated the isuue before.

APPLTCAMTS RESPONSE

The present application makes the assertion that the trial court is prohibited from the use of a state jail felony for enhancement purpose. see memorandum, pq 4.

Applicants previous application. $^{d}$ dact not make this assertion. The previous appliaction only asserts that the paragrabh was not alleged in indictment * 30,298 . see memorandum pg, 4

It was not until the trial courts response in the previous application that the applicant hecame aware that the prior conviction need not be alleged in the indictment, the 188, th district cited Brooks to support this position. see prior application. applicant contends that the only conviction found in any of his forms is the prior conviction in indictment * 30,600 . se Exhibit, C, also pg 19 of memorandum. This instument asserts: Having been convicted of the felony offense of PIRGLARY OP A FIITIDING on the 7, th day of Movemeherin cause Mo 23,029,B in the District Court of Texas, in case on the docket of said court and entitled the state of Texas V Terry Louis Miller intentionally or knowinolv possessed a fire arm before the fifth annaversary of the defendants confinement from releif of said confinement following said conviction.

This instrument makes no mention that the burglary would he used for enhancement puroose.

If the state intends to effectively increase the aetual amount of prison time the accuse must serve, it must provide adequate advance notice so that the accuse may prepair a proper defense to the states allegations, otherwise the applicant due-process becomes Piviated.

lukan v state, 780.5W, 2d, 246.

In lukan the court of appeals held that an enhance sentence must he supported hy a written allegation of a prior conviction.1,d at37 (An accused is entitled to a proper notice of a prior conviction that might be used for enhancment purpose.

The prior convitcion in indictment a 30600 only informs that the state intenofs to use this prior that the state entends to show that the applicant possessed a fire arm before the fifth annaverssary of his release. the notice does not infrom the applicant that the prior would be used for enhancemnt purpose. see exhibit c. otherwise the applicant would have prepaired a defense to the prior alleged here.

sec 4 (a)>

of the subsequent chapter provodes If a subsequent appliaction for a writ of habease corpus is filef after a final dispositionof a initial application challenging the same conviction a court may not consider the merits or grant relief based upon the subsequent appliaction unless applicont contains specifics facts establishing one of the two acceptions.

For the purpose of subsection (c) A factual hasis is unavailable on or before a date described by (a) (1) if the factual basis was not ascertainable through the excercise of reasonble diligence on or before that date. The trial court does not allege in the present application that the prior conviction in indictment 30,600 is the prior conviction used for enhancement. For this reason the applicant request that the present application he reviewed under section (C) of the subsequent chapter, the applicant has not found any prior felony that could be used to increase the range of punishment.

TI
COURTE RREPONSE

This is was previuoaly letiqated in the first application.

APPLICANT RFBUTTAI

The 188.th district conduct is contredled by law, when a trial court conduct violates one of those laws the court is said to have no authority to act, Ex,parte Sanchez, 918, SW, 2d, 526,-27.

The court of appeals reversed in Sanchez as the court should here holdin that a judicial defert in the trial proceedings would render a iudaement void. The court noted that the prior conviction alleged in indictment 30,600 can not be used for enhancement purpose.fortier V State. 105, SW, 3d, 697. Tx Crm App, 2003. The judicial performance performed by one with no authority to act may be raised at any time. Exparte Williams 65; Sw, 3d, 655, Applicant contends that the trial court entered a sentence of fourty year's in the case; bar. In a previous application the applicant made several inquiries into the existance of the specific conviction that was use to increase the punishment range. the 188.th District has yet to provide that information. see memorandum ba 4-5.

The applicant contends that the trial court vioalted his due process. The court of appeals is asked to review this application in an effort to discover the prior that gives the court its authority.

III
COURTS RESPONSE

the issue regarding the affirmative finding was previuoalv letigated on direct appeal.

APPLICANTS RESPONSE

The court does not assert that the apilient could not raise the issue in an application for 11:07, or in a habease corpus.

Applicant contends he is not prohibited from raising the issue again in his habeas for the first time.

IV
COURTS RESPONSE

While the specific complaint may not have been raised at that time, there is no new facts that could not have been raised in the first application.

APPLICANTS RESPONSE

Applicant was unaware of the prior conviction do to the fact it was not alleged in indictment 30,298. It was not until communicating with the trial court, it se1f that app1vents Tearnéd that the prior was some where among his forms. Once the applicant did discover the prior conviction he still was not aware that the conviction was a state jail felony. It was not until the applicant did additioanl sesanah regarding the prior conviction that the applicant became aware that the conviction was a state jail felony. One who has been accused of a crime may some times take months or even years before he/she discover the iniurv suffered whereas the attorney may discover the same information in a matter of hours.

*7 applicant argues that he was mislod by both the trialcourt and his counsel.as to the enhancement matter.

Indictment 30,600 is the new fact that applicant has presented in the current application. the court of appeals has recounozed in Brady voluntariness which explain that a.quiltv plea must be entered bv one aware of the direct consequences to be voluntarv.

Failure of the counsel to inform, invetigate, and obiect, violates the accuse due process, of the sixth, and fifth amendment.

Several courts have recognized where ineffective assistance of counsel occurs before a trial the hara consistent to the defense. Exoarte Femke, 13,5W, 3A, 791. the court of aoneals noted in Femke, That counsel failure to comnunicate creates a probability that sufficient to undermine the confidence and integrity of the out cone of the trial proceedings. I.d at

The courts have tailored a remedy to inquire into the injury sufferer when counsel fail's to convey information. Sec (C) provides review of those issue's. Whereas counsel may explain.

The issue of the alleqation inadequacy of the indictment was previuosly raised, in a first application.

APPLIACNTS RESPONSE

The 188, th District does not assert that the orior conviction in indictment 30,600 is the prior that the court used to enhance the punishment.

The appliacnt contend that the conviction alleged here deals with a question concerning the courts authority, to act.

There is no other prior alleged in any of the applicants forma. For these reasons the court of appeals is asked to develope the records even futher, whereas the 188, th District court may reveal the prior conviction used to increase the applicants punishment range .

Sec 4. plainly request that a final disposition on an initial writ. the court noted that it must entail a disposition relating to the merits of all claims raised. Dispositions relating to the merits are labled denial, while the disposition relater not related to the merits are labled dismissed. Reqardless of the labie the court noted that it should look at the substance of the disposition to determine whether the writ is barrég by sec 4. Ex,parte, Torres 943, SW, 2d, 469

Applicant respectfully ask that the appeals court review these meritable regardless as to whether the applicant" has satisfied the subsequent sec 4.

APPLTCAMTS RESPONSE

lukan v state, 780.5W, 2d, 246.

sec 4 (a)>

TI COURTE RREPONSE

APPLICANT RFBUTTAI

III COURTS RESPONSE

APPLICANTS RESPONSE

IV COURTS RESPONSE

APPLICANTS RESPONSE

APPLIACNTS RESPONSE

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COURTE RREPONSE

III
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IV
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